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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
JMK Communications, Inc. ) File Number: EB-03-CF-334
Licensee of Station WPWC(AM) )
Dumfries-Triangle, VA ) NAL/Acct. No.
200432340004
) FRN 0006-1615-09
)
FORFEITURE ORDER
Adopted: December 22, 2004 Released: December 27,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of fourteen thousand dollars
($14,000) to JMK Communications, Inc. (``JMK''), licensee of
radio station WPWC(AM), Dumfries, Virginia, for willful and
repeated violation of Sections 73.1745(a), 73.3526(e)(5), and
73.3526(e)(12) of the Commission's Rules ("Rules").1 The noted
violations involve JMK's operation of station WPWC(AM) at
unauthorized power levels and its failure to place the most
current ownership report and a list of programs that have
provided WPWC's most significant treatment of community issues in
the public inspection file.
2. On March 4, 2004, the District Director of the
Commission's Columbia, Maryland Office (``Columbia Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'') to
JMK for a forfeiture in the amount of twenty-two thousand dollars
($22,000).2
II. BACKGROUND
3. On July 2, 2003, an agent from the Commission's
Columbia Office conducted an inspection of station WPWC. The
agent found that the EAS receiver was not tuned to the proper
station and the reception of the second station was very noisy.
The agent noted that the EAS equipment was installed at the
station's unattended transmitter, and noted its monitoring and
transmitting functions were not available to the station's
operators at either WPWC's main studio in Annandale, Virginia or
its secondary studio in Woodbridge, Virginia. The agent also
found that, according to the station logs, WPWC operated with its
daytime power and antenna during nighttime hours. The authorized
daytime power is 1080 watts while the authorized nighttime power
is 540 watts. The station's logs indicated that WPWC changed to
its nighttime power level and antenna at 8:30 p.m.EST instead of
the authorized 8:15 p.m. EST on May 4, 2003 and May 8 through May
19, 2003. The agent discovered that JMK's public file included
neither station WPWC's most recent ownership report nor a current
and complete issues/programs list. On August 7, 2003, the
Columbia Office sent a Letter of Inquiry (``LOI'') to JMK to
clarify issues raised during the inspection. JMK responded to
the LOI on August 22, 2003. On March 4, 2004, the Columbia
Office issued the instant NAL to JMK, to which JMK responded on
April 14, 2004. In its response to the NAL, which includes a
declaration made under the penalty of perjury by the station's
chief engineer, Alfred Hammond, JMK seeks cancellation or
reduction of the forfeiture.
III. DISCUSSION
4. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). Section 503(b) of the Act
requires that the Commission, in examining JMK's response, take
into account the nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
such other matters as justice may require.5
5. Section 11.35(a) of the Rules requires that broadcast
stations have EAS equipment installed so that the monitoring and
transmitting functions are available during the times the
stations and systems are in operation. The investigating agent
found that JMK had violated Section 11.35(a) of the Rules because
the EAS monitoring and transmitting functions were not available
to the station operators at their normal duty positions.
However, as JMK points out, WPWC's EAS equipment is installed at
the station's transmitter site and operates automatically with
the capability of a remote control override. WPWC's EAS set-up
is consistent with Section 11.51(m) of the Rules which permits
automatic operation of the EAS system by broadcast stations that
use remote control. Further, although the NAL appears to cite
JMK for not monitoring its primary EAS source and having its EAS
equipment improperly tuned to its secondary EAS source, no
separate violation of Section 11.52(d) of the Rules6 was noted.
We agree with JMK that there was no violation of Section 11.35(a)
of the Rules. Therefore, we cancel the portion of the forfeiture
assessed for violation of Section 11.35(a) of the Rules and
reduce the forfeiture amount by $8,000.
6. Section 73.1745(a) of the Rules states, in pertinent
part, that no broadcast station shall operate with power other
than that specified and made a part of the license unless
otherwise provided in Part 73 of the Rules. The NAL found that
JMK did not change station WPWC's operating power level from its
authorized daytime power of 1080 watts to its authorized
nighttime power of 540 watts at the time required by its station
authorization. The NAL found that on May 4, 2003, and from May 8
to May 19, 2003, WPWC changed from nighttime to daytime power at
8:30 p.m. EST instead of the authorized 8:15 p.m. EST. In his
declaration, Mr. Hammond states that the changeover to nighttime
power and antenna is controlled by a reliable computer and is not
linked to manual logging. Thus, Mr. Hammond claims,
notwithstanding an inadvertent error in preparing the logs, the
nighttime power limits were not exceeded.
7. At the time the investigating agent reviewed the
station logs, he noted that the transmitter operating parameters
were the same day after day. The agent noted that blanks on the
pre-printed log form were completed with meter readings and a
statement that tower lights were functioning properly prior to
copying the forms for use in the log. He noted that the dates
and times of the meter readings and entries relating to the EAS
were then manually added. He also noted that the individual
pages were then signed by Mr. Hammond. In its LOI to JMK, the
Columbia Office asked JMK, ``Do you acknowledge that the above
described documents, presented as the station logs, showing
unvarying operating parameters do not accurately reflect the
station operation?'' In response, JMK stated, ``[w]e
respectfully do not agree that these documents do not accurately
reflect the station operation.'' The District Director
interpreted this statement as an affirmation that the station
logs were accurate. In its response to the NAL, supported by Mr.
Hammond's declaration, JMK asserts that the logs were in error.
Initially, JMK asserted that WPWC's station logs were accurate.
Now, JMK asserts that the station logs are inaccurate. After
considering JMK's response to the LOI and the agent's
contemporaneous observation of the logs, the District Director
considered the station logs to be accurate. We accept that
determination. Thus, we find that on May 4, 2003, and May 8
through May 19, 2003, JMK operated station WPWC at unauthorized
power levels. Alternatively, JMK argues that an occasional lapse
of fifteen minutes hardly warrants imposition of the maximum
forfeiture amount that would apply to a far more serious
situation as when a station fails to reduce power at all. We
note that the base forfeiture amount for each violation of
Section 73.1745(a) is $4,000. JMK's records indicate that it
violated Section 73.1745(a) of the Rules over 10 times in May,
2003. We see no reason to reduce the forfeiture and thus, we
sustain the imposition of one $4,000 forfeiture for these
violations.
8. Section 73.3526(e)(5) of the Rules requires commercial
broadcast stations to place a copy of the most recent, complete
ownership report in the public inspection file. Although JMK
states that it had filed the latest ownership report with the
Commission, JMK admits that the latest ownership report was not
in the public file. JMK further states that the file did contain
the previous report, which was identical in substance to the
latest report. JMK also asserts that the purpose of the public
file rule, which is to ensure public access to current
information, was served because members of the public looking at
the public file would have been able to get current information
from the previous year's report. We do not agree and conclude
that the public file rule was violated because it requires that a
copy of the latest ownership report be included in the public
inspection file and it was not.
9. Section 73.3526(e)(12) of the Rules requires commercial
broadcast stations to place in the public inspection file every
three months a list of programs that have provided the station's
most significant treatment of community issues during the
preceding three months. The rule also explains the information
that the list should contain. JMK admits, and we conclude, that
WPWC's public file contained an inadequately detailed
issues/programs list.
10. Although JMK admits the two public file violations,
JMK also argues that the proposed forfeiture amount is excessive
in comparison to forfeiture amounts that have been assessed for
more severe public file infractions. In support of this
contention, JMK cites to Maria Salazar, 17 FCC Rcd 14090 (2002),
Riverside Broadcasting, Inc., 15 FCC Rcd 18322 (2000), and
Telemedia Broadcasting, Inc., 17 FCC Rcd 14064. In Salazar and
Riverside, much like in the instant case, the base forfeiture
amount was assessed for violations of the public inspection file
rules. Our treatment of JMK's violation of the public file rules
is consistent with our treatment of the violations in the Salazar
and Riverside cases. In Telemedia, the Chief of the
Investigations and Hearings Division (``IHD'') of the Enforcement
Bureau found that, although Telemedia had violated Section
73.3526 of the Rules by failing to provide the complete public
inspection file upon request, its violation was the result of an
oversight caused by Telemedia being in the midst of a main studio
remodeling at the time of the request. The Chief of IHD
determined that, based on the facts of the case, an admonishment
was appropriate in Telemedia. Here we have no finding of
oversight and no chaos of a studio remodeling at the time the
public file was requested, yet, required information was not in
the public file. Accordingly, we do not believe that the sanction
for JMK's behavior should be limited to an admonishment.
11. We have examined JMK's response to the NAL pursuant to
the statutory factors above, and in conjunction with the Policy
Statement. As a result of our review, we conclude that JMK
willfully7 and repeatedly8 violated Sections 73.1745(a),
73.3526(e)(5), and 73.3526(e)(12) and impose a monetary
forfeiture in the amount of $14,000.
III. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,9 JMK Communications, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of fourteen thousand dollars ($14,000)
for willful and repeated violation of Sections 73.1745(a),
73.3526(e)(5), and 73.3526(e)(12) of the Rules.
13. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.10
Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the ``Federal Communications
Commission.'' The payment must include the NAL/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank ``Bank One,'' and account number 1165259.
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.11
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return receipt requested, to JMK
Communications, Inc., 4525 Wilshire Boulevard, Los Angeles,
California 90010, and its counsel, Peter Gutmann, Esq., at Womble
Carlyle Sandridge & Rice, PLLC, 1401 Eye Street, NW, 7th Floor,
Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.1745(a), 73.3526(e)(5), and 73.3526(e)(12).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432340004 (Enf. Bur., Columbia Office, released March 4,
2004).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 11.52(d) (requires broadcast stations to monitor
two EAS sources).
7 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful',
when used with reference to the commission or omission of any
act, means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act . . . .'' See Southern California Broadcasting Co., 6
FCC Rcd 4387-88 (1991).
8 As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Co. at 4388 (1991).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 U.S.C. § 504(a).
11 See 47 C.F.R. § 1.1914.